The Lessons of Panama and its Papers

Friday 8 April 2016

British Prime Minister David Cameron and his father Ian who owned the Panama off shore company

The names of persons implicated in the leak of the so-called “Panama papers” on April 3 reads like a who’s who of the politically powerful in many parts of the world. Included among the persons whose family members and close associates have been identified are: British Prime Minister David Cameron, Ukrainian President Petro Poroshenko, Saudi Arabian King Salman bin Abdulaziz Al Saud, Pakistani Prime Minister Nawaz Sharif, South African President Jacob Zuma, Syrian President Bashar al-Assad, Chinese President Xi Jinping, Icelandic Prime Minister Sigmundur David Gunnlaugsson and Russian President Vladimir Putin.

It should be noted, however, that there has been no evidence of direct connections to companies and bank accounts by these people. Neither has there been any evidence of illegal behaviour or wrong doing specifically by them. Some media are feeding a frenzy because mentioning well-known names helps to create and sustain a story that suggests impropriety.

The so-called “Panama Papers” is 11 million files leaked from the Panamanian law firm, Mossack Fonseca, to an organization called the International Consortium of Investigative Journalists (ICIJ) which has widely publicised much of the material. The law firm has denied any wrongdoing, and said it has fallen victim to “an international campaign against privacy”.

The resignation of Iceland’s Prime Minister, Sigmundur Gunnlaugsson, has helped to fuel the story, even though he has not stood down over an illegality. His resignation followed demonstrations based on the allegation that he concealed millions of pounds offshore. British Prime Minister David Cameron has also been compelled to talk about his family’s private business after his father was among those named in the Panama Papers.

The Caribbean will not be immune from the excitement that is being generated by the leaking of the papers. It seems that many of the companies, quite legitimately established by Mossack Fonseca, were registered in the British Virgin Islands. Further, one of the persons named is former British Conservative Member of Parliament, Michael Mates who had a small shareholding in a company, established to develop a beach resort on Barbuda – Antigua’s sister state – several years ago. Mates made it clear that the project failed, the company made no money and he had no remuneration to declare for tax. His interest in the company was also registered with the appropriate authorities in parliament.

From all that has emerged so far, it seems that many of the persons who have been identified in the Panama Papers were not evading tax or laundering money. The majority appeared to have been planning their taxes, including by the use of legitimate vehicles for avoiding the payment of tax. Tax avoidance in not illegal. Tax evasion is. But, increasingly there is a tendency to blur the two by those who advocate against low-tax or no tax jurisdictions, claiming that they are ‘tax havens’.

Already, one high-tax European Union country, France, has announced that it is putting Panama back on its list of “uncooperative countries”. One official of the Organization for Economic Cooperation and Development (OECD), Angel Gurria, has also sharply criticised Panama in the wake of Panama Papers. Gurria stated publicly that “Panama is the last major holdout that continues to allow funds to be hidden offshore from tax and law enforcement authorities”.

But, neither of the spokesmen for France or the OECD dealt with the fact that high tax jurisdictions force companies and persons to seek low tax jurisdictions to plan their financial affairs and that no illegality has so far emerged from the events in Panama.

For its part, the Panamanian government has pointed out that it has been removed from the ‘grey list’ of the Financial Action Task Force (FATF), the multilateral body that makes rules to counter money laundering and terrorism financing. In other words, it was judged to be compliant with FATF rules.

The government has also pointed out that half of the offshore companies that were established by Mossack Fonseca are registered in the British Virgin Islands - "a jurisdiction that operates under British legislation." The government also stressed that all of the 10 banks named in the Panama Papers as doing business with the law firm hit by the hack were based in Europe, not Panama.

Significantly, the government further noted that the US state of Delaware allowed great anonymity for company owners. "The tactic to ignore other jurisdictions and focus solely on Panama is unfair and discriminatory," the statement said.

It is clear from all this that ‘high tax’ jurisdictions and others have branded Panama without establishing that there is any evidence of money laundering or tax evasion. The fact is that establishing vehicles for tax planning, including avoidance, is not illegal. Panama has been very strong in resisting the imposition of rules by the OECD’s Global Forum on automatic Information exchange. It is now paying the price for its attempts to be autonomous.

In this connection, the observations of Dr Bruce Zagaris, a renowned US Tax lawyer is pertinent. He made the remarks at a meeting of the Permanent Council of the Organisation of American States that I chaired on March 30. He pointed out that the Global Forum is a sham by which the OECD strictly controls the agenda, the delegates and the information distributed to attendees, and, in terms of tax policies, the large countries have blocked efforts to have a universal organisation such as the United Nations make policy.

It is interesting that the Russian President Vladimir Putin whose name has been bandied about in relation to the Panama Papers has pointed out that his name is nowhere in the records.

Caribbean jurisdictions have worked hard with scarcer resources than Panama to comply with all the imposed rules and regulations, and to protect their standing in providing financial services. But, as events in Panama show, innuendo is all that is needed if facts confront assertions.